Victory for ‘Mama B’: |Same-Sex Parenting Evolves in NY

MANHATTAN (CN) — For 25 years, New York has held that a partner of an unmarried couple without a biological link to a child is not a parent. The state’s highest court scrapped this definition Tuesday as outdated and discriminatory to same-sex couples. New York’s Court of Appeals consolidated two cases involving unmarried lesbian couples for the groundbreaking decision, which Kramer Levin attorney Jeffrey Trachtman said “eliminates a rigid rule that unnecessarily harmed thousands of children and parents by denying the reality of their relationships.” As with all the parties to Tuesday’s ruling, the name of Trachtman’s client, Estrellita A., is abbreviated in the court record. When Estrellita A.’s partner, Jennifer D., became pregnant in 2008, New York was still three years away from legalizing same-sex marriage. Chronology is just one of the ways Estrellita and Jennifer’s story overlaps with that of the other couple behind today’s ruling. Elizabeth C.C. became pregnant in 2008 as well. Like Jennifer, she was inseminated through a donor. Her ex-partner, Brooke B., meanwhile echoes Estrellita’s claim of having entered into preconception agreements before the pregnancies. Both Brooke and Estrellita were at their partners’ sides at each stage of pregnancy, and they personally cut the umbilical cords of their newborns. Elizabeth gave birth to a baby boy who called his nonbiological mother “Mama B.” Jennifer’s baby girl meanwhile called Jennifer “Mommy” and Estrellita “Mama.” To maintain custody when the couples separated, however, the birth mothers invoked the Matter of Alison D. v Virginia M., a1991 case in which the New York Court of Appeals found that “a biological stranger to a child who is properly in the custody of his biological mother” has no “standing to seek visitation with the child.” In Brooke’s case, a Family Court judge remarked that he had the “heartbreaking” duty to follow this precedent. Estrellita’s counterpart meanwhile granted her regular visitation. Chucking that precedent Tuesday, the Court of Appeals was mostly unanimous calling Alison A. overdue for an update. “We agree that, in light of more recently delineated legal principles, the definition of ‘parent’ established by this court 25 years ago in Alison D. has become unworkable when applied to increasingly varied familial relationships,” the 27-page opinion says. Sheila Abdus Salaam, the judge behind today’s majority opinion, is the court’s first black, female judge and its first Muslim. She noted that another path-breaking judge — the late, legendary Judith Kaye — showed Alison D. to be antiquated in a fiery dissent half a century ago. Kaye, who died in January, became the Court of Appeals’ first female chief judge in 1993, and she also held that position longer than any of her male predecessors. As an associate of that court, Kaye had predicted that Alison D. would “fall hardest” on the millions of children raised in families headed by same-sex couples, unmarried opposite-sex couples, and step-parents. When that case was decided, more than 15.5 million children did not live with two biological parents, whereas between 8 million to 10 million children were being born into families with a gay or lesbian parent. Today’s ruling notes that “a growing body of social science reveals the trauma children suffer as a result of separation from a primary attachment figure — such as a de facto parent — regardless of that figure’s biological or adoptive ties to the children.” Four judges joined the lead opinion in full but Judge Eugene Pigott agreed only in result. An appointee of former Republican Gov. George Pataki, Pigott argued that progress should come from the state Legislature rather than the judiciary. “Rather than craft a new definition to achieve a result the majority perceives as more just, I would retain the rule that parental status under New York law derives from marriage, biology or adoption and decide Brooke B. on the basis of extraordinary circumstances,” Pataki said. “As we have said before, ‘any change in the meaning of ‘parent’ under our law should come by way of legislative enactment rather than judicial revamping of precedent.'” The ruling affirms Estrellita’s visitation rights and sends Brooke’s case back to family court for further proceedings. Attorney Trachtman applauded the court for bringing “New York into line with the mainstream view that parental status may be established based on a couple’s decision to co-parent and the reality of the parent-child relationship and not just biology or legal adoption.” Trachtman said the court “correctly reads the triumph of marriage equality as reflecting a strong societal shift towards respect for the families formed by same-sex couples.”